Bowen v Willoughby City Council

[2000] NSWLEC 69

Reported Decision: 108 LGERA 149

Land and Environment Court

of New South Wales

CITATION:	Bowen V Willoughby City Council [2000] NSWLEC 69
PARTIES:	APPLICANT: Bowen RESPONDENT: Willoughby City Council
FILE NUMBER(S):	10064 of 2000
CORAM:	Bignold J
KEY ISSUES:	Question of Law :- Determination at preliminary stage whether proposed development prohibited development - whether LEP provisions concerning foreshore building line is a development standard.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979, s 4; s 80 (2)
CASES CITED:	Bowen v Minister for Urban Affairs (1996) 90 LGERA 368 Willoughby City Council v Bowen (1996) 92 LGERA 410· Woollahra Municipal Council v Carr (1985) 62 LGRA 263; Vaniga Pty Ltd v South Sydney City Council (1989) 74 LGRA 86· North Sydney Council v P D Mayoh Pty Ltd (No 2) (1990) 71 LGRA 222; Healesville Holdings Pty Ltd v Pittwater Council (1997) 97 LGERA 95;· Quinn O’Hanlon Architects Pty Ltd v Leichhardt Municipal Council (1989) 68 LGRA 114;· Napper v Shoalhaven Shire Council (unreported 12 February 1988 per Stein J) ; Kruf v Warringah Shire Council (unreported 15 September 1988 per Holland J; Frisoli v Leichhardt Council (1996) NSWLEC 157 15 June 1998) Bell v Shellharbour Municipal Council (1993) 78 LGERA 429 McKay v North Sydney Council (2000) NSWLEC 62; Whitefield v Sutherland Shire Council (1989) 69 LGRA 48 (per Bignold J); Currey v Sutherland Shire Council (30 November 1989, unreported per Hemmings J; Patrial Holdings Pty Ltd v Sutherland Shire Council (unreported 29 March 1995 per Talbot J; Pascale v Sutherland Shire Council (1995) 87 LGERA 30 per Bannon J; Fast Buck$ v Byron Shire Council (1999) 103 LGERA 94; G T Brissett and Co v Gosford City Council (1985) 57 LGRA 164 Smith v Wollondilly Council (1995) 86 LGERA 437; Rutland v Shoalhaven City Council (1997) 94LGERA 370
DATES OF HEARING:	03/04/00
DATE OF JUDGMENT:	04/06/2000
LEGAL REPRESENTATIVES:	APPLICANT: Mr P Tomasetti, Barrister with Mr M Fraser, Barrister SOLICITORS Corrs Chambers Westgarth RESPONDENT: Mr J Robson, Barrister SOLICITORS Mallesons Stephen Jaques

JUDGMENT:

IN THE LAND AND Matter No . 10064 of 2000

ENVIRONMENT COURT OF Coram : Bignold J.

NEW SOUTH WALES 6 April 2000

D AND L BOWEN

Applicants

v

WILLOUGHBY CITY COUNCIL

Respondent

JUDGMENT ON PRELIMINARY QUESTIONS OF LAW

Bignold J:

A. INTRODUCTION

1. The Council has raised two preliminary questions of law in pending class 1 proceedings, being an appeal by the Applicant pursuant to the Environmental Planning and Assessment Act 1979 s 97 (EP&A Act), against the Council’s deemed refusal of development consent to a development application for the re-subdivision of land known as Nos 70-72 Sugarloaf Crescent, Castlecrag, being lots 301 to 305 (inclusive) DP 13613, (the development site) into the same number of lots but having different shapes and sizes to the existing five lots.

2. The questions of law are as follows:
1. Whether the proposed development is prohibited by Clause 16 of the Willoughby Local Environmental Plan, 1995 on the basis that the foreshore building line provisions in Clause 16 are not development standards which can be varied by operation of the State Environmental Planning Policy No. 1.
2. Whether the development consent must be refused by operation of Section 80(2) of the Environmental Planning and Assessment Act, 1979 on the basis that the construction of the driveway and erection of dwelling houses on the lots to be created by the subdivision would be contrary to Clause 16 of Willoughby Local Environmental Plan, 1995.

B. THE RELEVANT FACTS

3. To facilitate the determination of the preliminary questions of law, the parties have tendered a statement of agreed facts (Exhibit 1) a copy of which is annexed hereto and marked “A”.

4. In amplification of the facts contained in that statement, it is necessary to note some further facts that emerge from the documentary materials supporting the development application, which materials were introduced into evidence and are not the subject of any dispute.

5. The existing five lots comprising the development site are elongated lots (with depths ranging from 112 m to 168 m), each having a narrow frontage of 6.095 m to Sugarloaf Crescent and fanning out to widths ranging from 24 m to 30 m, at the rear boundary with the adjoining reserve to Sugarloaf Creek.

6. The proposed subdivision re-subdivides those lots so that two lots will have street frontage (12 m and 18 m respectively) to Sugarloaf Crescent with depths ranging from 58 m to 78 m and the other three lots will be located behind the two street frontage lots, with an internal accessway traversing in winding fashion, the street frontage lots providing access from the street to each of the three rear lots.

7. The proposed internal accessway will require construction and will involve a cut and fill operation with some sections of the roadway being cantilevered above ground level because of the natural fall in the development site towards Sugarloaf Creek.

8. The relevant foreshore building line (FBL), in force under the Willoughby Local Environmental Plan 1995 cl 16(2) (the LEP), traverses the development site in a fashion that demarcates some 80 per cent of the aggregated land area of the five existing lots on the foreshore side of the line, leaving some 20 per cent of the aggregated land area on the landward side of the line. Within the latter sector of the development site, the two existing dwelling-houses (known as Nos 70 and 72 Sugarloaf Crescent) are located.

9. In the proposed subdivision, the FBL, of course, remains in the same place but instead of traversing each of the existing five lots, it traverses only the two street frontage lots (the majority of the respective areas of which are located on the landward side of the FBL).

10. The three proposed rear lots located behind the street frontage lots are located entirely within the foreshore side of the FBL

11. Approximately half of the proposed internal accessway is located on the landward side of the FBL and the other half is located on the foreshore side of the FBL.

12. It is also necessary to refer to some other provisions of the LEP in addition to cl 16.

13. The LEP is divided into seven parts as follows:

Part 1 General Provisions

Part 2 Residential Areas

Party 3 Business Centres

Part 4 Industrial Areas

Part 5 Special Uses

Part 6 Open Space

Part 7 Heritage and Conservation Special

Provisions

14. Included in Part 1 is the conventional Zoning Map and Development Control Table ( cl 12 and cl 13 ).

15. Part 1 includes cl 11which deals with “subdivision” by providing as follows:

A person shall not subdivide land except with the consent of the Council .

16. Clause 12 designates the development site within the Residential “ A2 ” Scenic Protection Zone.

17. Clause 13, which sets forth the Zone Objectives and Development Control Table, includes the following conventional provision:
(2) Except as otherwise provided by this plan, within a zone specified in a development control table, the development that:
a. may be carried out without development consent;
b. may be carried out only with development consent; and
c. is prohibited,

is indicated by the use of the words without development consent , only with development consent and prohibited respectively.

18. In respect of the Residential A2 Zone, the Development Control Table stipulates no development that is permitted without development Consent. It also stipulates that within that zone, the “ development for the following purposes is permitted only with development consent ”

bed and breakfast;

drainage;

dual occupancies;

dwelling-houses;

home business;

professional consulting rooms

roads;

utility installations (other than gas holders or generating works).

19. The Development Control Table prohibits within that zone “ any other development that is not a listed use ”.

20. Clause 16, providing for foreshore building lines is included in Part 2 of the LEP. It provides as follows:
16. FORE SHORE BUILDING LINE
(1) The objectives of a foreshore building line are:
a) to preserve and enhance the natural features and vegetation of the area where the land meets or is in close proximity to the water; and
b) to encourage the protection and regeneration of land which forms an integral part of the foreshore setting by controlling new development.
(2) Foreshore building lines are shown on sheets 12A, 12B, 12C and 12D of the map by a broken black line and unbroken red line.
(3) Except with the consent of the Council granted in accordance with subclause (4), a building shall not be erected between a foreshore building line and the bay, creek, harbour, river, lake or lagoon in respect of which the line is fixed.
(4) The Council may, after considering the probable aesthetic appearance of the proposed structure in relation to the foreshore consent to the erection, repair or maintenance of:
a) single storey boat sheds; or
b) retaining walls; or
c) inclinators; or
d) structures or works, such as swimming pools, below or at the surface of the ground; or
e) minor recreational and landscaping structures such as barbecues, gazebos and garden sheds,

between a foreshore building line and the bay, creek, harbour, river, lake or lagoon in respect of which the line is fixed.

21. It is to be noted that the FBL affecting the development site which is shown on sheet 12B of the LEP Map, is one of several foreshore building lines that are shown in relation to lands situate at Castlecrag and having frontage to either the waterways in this section of Middle Harbour or to public reserves adjoining such waterways. It is also to be noted that such foreshore lands are in the form of residential lots reflecting a typical residential suburban pattern, albeit where many of the lots (like the five lots comprising the development site) are very deep lots which distinguish them from the smaller lot pattern reflected in the immediate neighbourhood removed from the immediate foreshore context.

22. It is also to be noted that the depths of the various FBLs are variable in the extent to which they affect the foreshore lands, some like the FBL applying to the development site are very deep and involve the major portions of the lots so affected whereas other FBLs only affect small portions of affected lots.

23. By way of background fact, it may be noted that the FBL affecting the development site is the same FBL that was the subject of proceedings in this Court in 1996 in which the present applicants, together with other affected landowners obtained a declaration that the relevant FBLs (including that affecting the development site) were invalid: Bowen v Minister for Urban Affairs (1996) 90 LGERA 368.

24. However, that decision was reversed on appeal to the Court of Appeal: Willoughby City Council v Bowen (1996) 92 LGERA 410.

25. It is further to be noted that in those proceedings, no question arose as to the amenability of the FBL to the dispensational power conferred by State Environmental Planning Policy No 1—Development Standards (SEPP No 1).

26. Finally, it is to be noted that in the present case, the development application is supported by an objection under SEPP No 1 in respect of that part of the proposed internal accessway that is located on the foreshore side of the FBL A copy of the objection is annexed hereto and marked “B”.

27. From all the foregoing facts, I think it is possible to refine the following facts as being most relevant to the two questions of law that require determination:
1. The LEP imposes the following controls on the development of the development site:
(i) subdivision may be carried out with development consent (cl 11);
(ii) development for the purposes of a dwelling-house may be carried out with development consent (cl 13);
(iii) however no building shall be erected on the foreshore side of the FBL (16(3)) except that the Council may exceptionally permit “the erection, repair or maintenance” of a limited range of buildings or structures, generally of the kind ancillary to dwelling-house development (including “(d) structures or works such as swimming pools, below or at the surface of the ground”): cl 16(4).
2. The proposed development involves the re-subdivision of the entire development site into the same number of lots as currently exist where some parts of the two street frontage lots are affected by the FBL and the entirety of the three rear lots is affected by the FBL. Included in that development is the construction of an internal accessway, part of which (some 50 per cent) is physically located on the landward side of the FBL and the other part of which (some 50 per cent) is located on the foreshore side of the FBL
3. The Applicant has supported the development application with an objection under SEPP No 1 in respect of that part of the proposed internal accessway that is located on the foreshore side of the FBL

C. QUESTION 1 - IS THE PROPOSED DEVELOPMENT PROHIBITED?

28. It is important, in my judgment, to note precisely what this question asks. This is particularly the case, having regard to the manner in which the competing argument was advanced, where that argument tended to exclusively focus on what is really a different question, namely whether cl 16 of the LEP imposes a “development standard” within the meaning of the EP&A Act and .SEPP No 1.

29. For example, the argument ignored the effect of cl 11 of the LEP. In my judgment that clause makes it clear that subdivision of land may be permitted with development consent. The clause obviously applies to the development site. Yet no argument was advanced on the question of the relationships (if any) between cl 11 and cl 16(3).

30. In given cases, there may be no relationship. Thus, in the case of a subdivision of land that may be effected without the necessity for any building work (generally called “a paper subdivision”) the prohibition imposed by cl 16(3) on “the erection of a building” on a foreshore side of the FBL would simply not be raised in any consideration of the proposed subdivision.

31. However, in the present case, the proposed subdivision is not simply a “paper subdivision” in that it also involves the provision of an internal accessway to provide access from Sugarloaf Crescent, to the three rear lots located behind the two street frontage lots. It is only on this account, that the Applicant supports his application for the proposed subdivision with an objection under SEPP No 1.

32. In these circumstances, I am prepared to assume (as the parties have assumed) that development consent for the proposed subdivision can only be legally granted if the objection under SEPP No 1 is upheld. (In so proceeding, I have also assumed that the proposed internal road accessway is not “a structure or works….below or at the surface of the ground” within the meaning of cl 16(4)(d) of the LEP because otherwise recourse to SEPP No 1 would not be necessary.)

33. Another possibility not addressed in the argument is whether cl 16(4)(d) itself imposes a development standard, by requiring that the structures or works that may be permitted must be located “below or at the surface of the ground”.

34. It is only after making these assumptions that the question whether the proposed subdivision is relevantly prohibited by virtue of cl 16(3) of the LEP is truly encountered.

35. The parties’ competing submissions on this question have properly focussed upon the terms of cl 16 of the LEP and in particular, whether those terms have the effect of absolutely prohibiting the proposed subdivision (as contended by the Council) or whether they regulate by imposing requirements or fixing standards in respect of development that may be carried on the development site (as contended by the Applicant).

36. More narrowly focussed, the issue is whether cl 16(3) operates or functions as a “development standard” within the meaning of the EP&A Act and SEPP No 1 ( as contended by the Applicant - but denied by the Council).

37. This narrowest formulation of the question in dispute is an acceptable formulation provided that the answer is seen as a necessary stepping stone to the determination of the preliminary question of law as framed, namely— is the proposed development prohibited?

38. That this is so is revealed by the decided cases, in particular the decisions of the Court of Appeal in Woollahra Municipal Council v Carr (1985) 62 LGRA 263; Vaniga Pty Ltd v South Sydney City Council (1989) 74 LGRA 86; North Sydney Council v P D Mayoh Pty Ltd (No 2) (1990) 71 LGRA 222; and Healesville Holdings Pty Ltd v Pittwater Council (1997) 97 LGERA 95.

39. These cases demonstrate the need to place in the proper context, decisions as to whether a provision of an environmental planning instrument is relevantly a development standard and whether the dispensational power conferred by SEPP No 1 is available in given cases. The most obvious context is SEPP No 1 itself and the environmental planning instrument in which the relevant provision is contained. The reason why context is crucial is that it is the point of interaction between SEPP No 1 and the other relevant environmental planning instrument because the dispensational power under SEPP No 1 is only available where it can be concluded that the proposed development is “development that could, but for any development standard, be carried out under the Act….”: vide cl 6 of SEPP No 1.

40. However, at least it is clear that unless cl 16 can be construed as a “development standard”, the dispensational power conferred by SEPP No 1 would not be available to provide relief against the prohibition imposed by cl 16(3) of the LEP on the erection of a building on the foreshore side of the FBL

41. In contending that cl 16(3) relevantly specifies a requirement or fixes a standard in respect of the carrying out of development on the development site, the Applicant places considerable reliance upon the decision of the then Chief Judge of this Court in Quinn O’Hanlon Architects Pty Ltd v Leichhardt Municipal Council (1989) 68 LGRA 114 where Cripps CJ held that the provisions of the Leichhardt Local Environmental Plan, fixing in a foreshore building line and imposing controls on development of the land so affected (including a prohibition on the erection of a building on the foreshore side of the line) were relevantly a “development standard” amenable to the dispensational power conferred by SEPP No 1.

42. In that case, Cripps CJ at 118/119 expounded the effect of the relevant statutory provisions concerning the foreshore building line as follows:

In the present case, as I have said, the erection of a dwelling-house is permissible in the zoning tables over the whole of the land except that that which is permitted (that is, a dwelling house) may not, subject to certain exceptions, be erected over part of the land

43. Having so held, his Honour immediately states the following opinion (at 119):

It would seem to me, in the absence of any authority to the contrary, that the fixing of a building line as a special provision in a planning ordinance would be relevantly a development standard and one being in respect of an aspect of the development viz the siting of a permissible building on the land.

44. This opinion was reached in the face of the council’s argument (at 117) that the relevant clause was “ a prohibition on development ” in respect of which SEPP No 1 had no application. The council’s argument was said to be supported by two earlier decisions in this Court, namely Napper v Shoalhaven Shire Council (unreported 12 February 1988 per Stein J) and Kruf v Warringah Shire Council (unreported 15 September 1988 per Holland J).

45. After quoting from Kruf, Cripps CJ distinguished that case in the following observation at 119:

It is to be noted that the prohibition in Kruf extended to the whole of the land the subject of the application. In the present case, the prohibition applied only to that part of the land on the foreshore side of the line.

46. However, his Honour went further by saying at 119/120:

If Kruf is authority for the proposition that a setback provision is not a standard which might, in appropriate circumstances, be dispensed with under SEPP No 1, then I must respectfully decline to follow it. In my opinion, part of the difficulty is caused by the use of the word prohibition . In Kruf’s case, motels were not absolutely prohibited within zone 1(a). To the contrary, they were permitted. However, the land was required to have, inter alia, a means of vehicular access more than 90 metres from the intersection of the road frontage and the main road. In my opinion, and with the greatest respect to those who view the matter otherwise, cl 28A was relevantly a requirement specified or standard fixed in respect of that development.

47. The Applicant additionally placed considerable reliance upon the fact that the correctness of Quinn O’Hanlon has never been doubted and has oftentimes since been cited, including in cases decided by the Court of Appeal. (Although in Frisoli v Leichhardt Council (1996) NSWLEC 157 (15 June 1998) Talbot J expressed obiter doubt about the correctness of Quinn O’Hanlon , his Honour nonetheless followed it.)

48. In P D Mayoh Clarke JA (one of the majority judges) expressed the tentative view that the decision in Quinn O’Hanlon was “clearly right”. The full text of Clarke JA’s consideration of Quinn O’Hanlon should perhaps be recited, his Honour saying at 238:

In the latter case the Chief Judge of the Land and Environment Court was concerned to determine whether a foreshore building-line, which prohibited the carrying out of any development on a certain parcel of land between the line and the harbour foreshore, was a development standard. His Honour held it was. The development under consideration (the erection of a dwelling-house) was permitted on the land and the only effect of the foreshore building line was to prohibit, subject to certain exceptions, any part of the building being placed on the land between the line and the harbour foreshore.

Although the Court did not hear detailed argument on Quinnn O’Hanlon my tentative view is that Cripps J was clearly right. The relevant clause did not prohibit the erection of a dwelling-house on the land. It simply laid down a requirement that it be sited in a particular part of the land. That, as I presently see it, is a development standard. But as is obvious, cl 14A(1)(a) of NSLEP is in a different category to the foreshore building-line with which Cripps J was dealing.

It is correct, however, to observe that Cripps J did express the opinion, obiter, that Holland J was wrong and observed that the use of the word prohibition contributed to difficulties of interpretation. I accept that the substantial effect of particular prohibitions, such as, for instance, the prohibition in Quinnn O’Hanlon may be to impose a requirement but this recognition only serves to focus attention on the prohibition under consideration. On the other hand I agree, as I have already said, with that portion of the judgment of Holland J I have quoted (subject to the qualification I expressed). In my view it expresses with clarity the distinction between a prohibition against the carrying out of a particular development on land and the setting of a standard against which a permitted development may be measured.

49. Perhaps even more significantly, in the later Court of Appeal decision in Bell v Shellharbour Municipal Council (1993) 78 LGERA 429, where the judgment of the Court was given by Cripps JA (as he had become) and which was concurred in by the other members of the Court, (Mahoney JA and Clarke JA, who themselves had comprised the majority in P D Mayoh (No 2) , Quinn O’Hanlon was cited in a collection of cases (which included Kruf ) as decisions where this Court or the Court of Appeal had held in some cases the relevant statutory provisions to impose an absolute prohibition and in other cases had held the relevant statutory provisions to be “ regulatory ” (and hence amenable to the dispensing power conferred by SEPP No 1).

50. Although Clarke JA in Mayoh at 237 acknowledged the “limited assistance” of other decisions on other provisions in environmental planning instruments, in the true task of the Court in any given case to “determine the meaning and effect of the clause under consideration” it is, I think, nonetheless relevant to say that so far as Counsels’ researches and my researches have revealed, there has been no case involving the interpretation of foreshore building line provisions conventionally contained in environmental planning instruments involving foreshore lands, where the relevant provision was not interpreted as a development standard. This was so, until the decision handed down last Friday by Sheahan J in McKay v North Sydney Council (2000) NSWLEC 62.

51. Prior to that decision, foreshore building line provisions had been held to involve a “development standard” in the following cases subsequent to Quinn O’Hanlon:
(i.) Whitefield v Sutherland Shire Council (1989) 69 LGRA 48 (per Bignold J)
(ii.) Currey v Sutherland Shire Council (30 November 1989, unreported per Hemmings J)
(iii.) Patrial Holdings Pty Ltd v Sutherland Shire Council (unreported 29 March 1995 per Talbot J);
(iv.) Pascale v Sutherland Shire Council (1995) 87 LGERA 30 (per Bannon J).

52. I readily accept the point made by Counsel for the Council that the various statutory provisions concerning foreshore building lines that were the subject of these decided cases are not uniform. However, a common feature of the statutory provisions in the cases is the fixing of a foreshore building line, and the consequent control on development (sometimes in the form of absolute prohibition) on the foreshore side of the foreshore building line (without there being any relevant prohibition on development on the landward side of the foreshore building line).

53. It is in respect of the lastmentioned common factor in the decided cases on foreshore building line provisions that decision in McKay can be meaningfully distinguished because in that case, the relevant foreshore building line statutory provision applied only to “land between the foreshore building line and the adjacent shore of Sydney Harbour or Middle Harbour”. It was in those circumstances that Sheahan J held that the relevant provision which relevantly “prohibited development” (putting aside immaterial exceptions) was not a development standard.

54. Although it is true that in that case Sheahan J said of the applicant’s reliance upon Quinn O’Hanlon, that that decision was not “authority for the proposition that foreshore building lines are relevantly always development standards”: par 25, I do not understand his Honour to be doubting the correctness of Quinn O’Hanlon.

55. This is made especially clear by his Honour’s acceptance of the general principle expounded by Cripps JA in Bell “that the terms of each particular clause must be interpreted, having regard to that clause’s particular context, and that a decision in respect of one development standard or prohibition is of little assistance in the interpretation of another”: see at par 24. (The same point was made by Clarke JA in P D Mayoh at 237 to the effect that the actual decisions in cases involving other statutory provisions have no relevance “to the task of construing a statutory provision to determine whether it laid down a development standard”.)

56. In the result, Sheahan J held at par 35 the relevant statutory provision had the effect of prohibiting any development, subject to exceptions (not relevant).

57. The decision in McKay is, as I have mentioned, readily distinguishable on its facts, (in precisely the same manner that Kruf was distinguished in Quinn O’Hanlon), namely that the proposed development in McKay was wholly contained within the foreshore side of the foreshore building line whereas in the present case, as I have earlier stated, the internal accessway is partly located on the landward side of the FBL and partly located on the foreshore side of the FBL (the respective parts being approximately equal).

58. The Council did not submit that Quinn O’Hanlon was wrongly decided. (Ultimately, this position has exposed the Achilles’ heel in Council’s case.) Rather, it submitted that cl 16, properly construed, prohibited the proposed subdivision because some 50 per cent of the internal accessway is to be located on the foreshore side of the FBL as are the three proposed rear lots located behind the two street frontage lots.

59. However, it is only to the extent that the internal accessway encroaches onto the foreshore side of the FBL that the Council can assert that any building is being erected in breach of cl 16(3) of the LEP, because as I have earlier pointed out but for the accessway the re-subdivision of the existing five lots into the proposed re-configured five lots would relevantly constitute the subdivision of the development site conformably to cl 11 of the LEP.

60. In the course of their very helpful and comprehensive rival submissions, Counsel for the opposing parties have referred to many of the decided cases. However, as I indicated in the course of argument, the same course that was adopted by the Court of Appeal in Bell appeared eminently appropriate to be adopted in the present case.

61. In Bell, Cripps JA, in holding the concession that the relevant statutory provisions constituted ‘development standards” to be “correctly made”, considers the decided cases in the following passage at 432/433 in a manner that I would respectfully adopt:

In the course of argument, reference was made by both counsel to a number of decisions dealing with certain clauses in planning instruments and the amenability of those clauses to the dispensing power in State Environmental Planning Policy No 1: see North Sydney Municipal Council v P D Mayoh Pty Ltd [No 2 ] (1990) 71 LGRA 222, Quinnn O’Hanlon Architects Pty Ltd v Leichhardt Municipal Council (1989) 68 LGRA 114, Kruf v Warringah Shire Council (Land and Environment Court of New South Wales, 15 December 1988, unreported), Napper v Shoalhaven City Council (Land and Environment Court of New South Wales, 26 February 1988, unreported), Ford Mirvac Developments Pty Ltd v Blacktown City Council (Land and Environment Court of New South Wales, 3 April 1990, unreported), Challister Ltd v Blacktown City Council (1992) 76 LGRA 10 and Nooramunga Holdings Pty Ltd v Shoalhaven City Council (Land and Environment Court of New South Wales, 7 February 1991, unreported). I trust I do no disservice to the arguments presented when I say it is unnecessary in this appeal to deal with these cases. There is, self-evidently, a difference between a clause absolutely prohibiting development on the one hand and a clause regulating development by specifying requirements or fixing standards on the other. Whether a particular clause in a local environmental planning instrument has the effect of regulating or prohibiting development is a matter of construction. In some of the cases the Court has held that the relevant clause was an absolute prohibition — in others it was held that the clause was regulatory. But, as was pointed out in Mayoh , the obligation of the Court is to interpret the clause in the instrument before it.

62. It is of more than passing interest to note the relevant statutory provisions considered in Bell in the light of the relevant facts of that case. The proposed development involved the subdivision of a parcel of land some 18 ha in area into two lots, one of 2 ha and the other of 16 ha, where both proposed lots would contain areas far less than the prescribed minimum area (40 ha ) and one of the lots would contain a frontage to the highway far less than the prescribed minimum frontage.

63. Relevantly, the statutory provisions contained in the Shellharbour Local Environmental Plan were to forbid the subdivision of land without development consent (cl 15) and cl 16(2)) which applied to the subject land confined the power to so consent, by providing as follows:
(2) The council shall not consent to the subdivision of land to which this clause applies unless each allotment of land to be created by the subdivision will have —
(a) an area of not less than 40 hectares; and
(b) where the allotment has frontage to a main road — a frontage of not less than 200 metres.

64. Accordingly, the combined effect of the relevant statutory provisions was that subdivision of land required development consent, but that the council was forbidden from granting consent to a subdivision unless each proposed lot had a minimum area of 40 ha and where the lot had frontage to a main road, had a minimum frontage of 200 m.

65. Applying those provisions to the relevant facts of the case, it would be an unexceptional deduction to say that the proposed subdivision was “prohibited development” because each of the lots proposed to be created contained an area far less than the prescribed minimum area. Indeed logically it could be deduced, again unexceptionally, that the relevant land was legally incapable of subdivision for the intended purposes because it simply lacked the requisite area to be subdivided in accordance with the relevant statutory provisions.

66. Nonetheless, the Court held that the statutory provisions relevantly constituted development standards because cl 16(2) contained provisions “specifying requirements or fixing standards in respect of an aspect of the proposed development”: at 431.

67. Bell, in my respectful opinion, sounds an important cautionary note against an oversimplistic or excessive reliance in this field of jurisprudence, upon the dichotomy of “prohibition” and “regulation” as providing the interpretive solvent to whether a particular statutory provision is, or is not, relevantly a development standard.

68. Although the later decision of the Court of Appeal in Healesville appears to have adopted a more cautious approach as to whether a very similar statutory provision (albeit in an urban setting) operated as a development standard (inasmuch as Priestley JA who gave the leading judgment considered it unnecessary to consider whether the concession that a development standard was involved, was well founded) the Court’s attention does not appear to have been directed to the decision in Bell. Rather, the argument directed attention to the earlier decisions in Vaniga and P D Mayoh.

69. However, in the still later decision of the Court of Appeal in Fast Buck$ v Byron Shire Council (1999) 103 LGERA 94 where the relevant statutory provisions and relevant facts were not materially different from those in Bell, the Court of Appeal proceeded on the basis that the statutory provision was relevantly a “development standard” amenable to the dispensational power conferred by SEPP No 1.

70. It is not necessary in the present case to completely explore the ramifications of the Court of Appeal’s decision in Bell for the conventional dichotomy of “prohibiting” and “regulating” controls on development other than to make two observations. Firstly, it appears too late in the day to say that the dichotomy serves no useful purpose. Clearly, it is an apt descriptor of the interpretive result in cases as to whether provisions are or are not, development standards. Secondly, that a development standard may involve “prohibition” was recognised as long ago as 1985 when Carr was decided: see at 269 per McHugh JA (as he then was). Even in P D Mayoh, which appears to be the high water mark of the influence of the dichotomy, Clarke JA recognised at 238 that the “substantial effect of particular prohibitions….may be to impose a requirement” (constituting a development standard).

71. In my opinion, cl 16 of the LEP (i) in fixing the FBL and (ii) in prohibiting the erection of a building (save for immaterial exceptions) on the foreshore side of the FBL, is relevantly a development standard in that (i) it is a provision of an environmental planning instrument in relation to the carrying out of development, and (ii) which specifies a requirement or fixes a standard in respect of an aspect of that development.

72. To elaborate upon, and to contextualise this conclusion, it is to be noted that the relevant development is the subdivision of the development site, being a development that is permissible with consent (vide cl (11)) where that development provides an internal accessway servicing the three rear lots which accessway is partly located on the landward side of the FBL and partly located in the foreshore side of the FBL. Properly construed, the FBL specifies a requirement in relation to that development, (namely by requiring any building to be located on the landward side of the FBL) which requirement is relevantly a requirement in respect of (a) the distance of any building from any specified point; (b) the proportion of the area of the site which a building may occupy; (c) the location and siting of a building or work — as these several expressions appear in the enumerated matter in the definition of “development standards” in the EP&A Act s 4.

73. It follows, in my opinion, that the development standard is amenable to the dispensational power conferred by SEPP No 1. It further follows that the Applicant’s objection in support of the development application has enlivened the availability of that dispensational power.

74. This conclusion is entirely consistent with the approach taken by this Court to the interpretation of foreshore building line provisions which have been held since the decision in Quinn O’Hanlon to be development standards. (As I have already pointed out, McKay is distinguishable on the facts.)

75. In my respectful opinion, Quinn O’Hanlon was correctly decided, and its interpretive approach to a very similar statutory provision, is of obvious assistance in the present case.

76. My conclusion that cl 16 relevantly is a development standard and is amenable to the dispensational power under SEPP No 1, means that the question of law whether the proposed development is prohibited, must be answered in the negative.

77. However, in leaving this question, I think that I should emphasise that my conclusion that cl 16 relevantly is a development standard that is amenable, by virtue of the Applicant’s objection under SEPP No 1, to the dispensational power available under that Policy, is based upon the facts of this case, and in particular, the Applicant’s development application that is the subject of the proceedings.

78. To put the matter more bluntly, it is not a conclusion in respect of any future development that may be proposed for the proposed re-subdivision of the development site. It is apparent that the intention for creating the three rear lots is that each lot will in due course become the site of a dwelling-house. However, that is only a future possibility that is beyond the ambit of the present proceeding.

79. Nevertheless, it is apparent that any such future housing development will require the grant of development consent. But even more apparent is the fact that any such development proposal will inevitably encounter the effect of cl 16(3) of the LEP. If that provision remains in force, if and when, such a development application is made, it is apparent that the proposed development will only become legally permissible if the dispensational power under SEPP No 1 can be availed of by the proposed developer. In the light of these future possibilities, I think it important that I state my opinion that my present determination of the question of law, simply does not address that future situation.

80. In this respect, I fear that the parties may not have raised all questions truly in dispute between them concerning the effect of cl 16(3) of the LEP. It may have been thought that the question whether dwelling-house development on the proposed three rear lots was too remote from the issue raised by the present proceedings, which is confined to the proposed subdivision of the development site (although in raising the second question of law based upon the EP&A Act, s 80(2), the Council was obviously alive to the likely future development of these proposed lots by dwelling-house development).

81. Be this as it may, I think it necessary at this point to say, as at present advised that my construction that cl 16 of the LEP is relevantly a development standard is fundamentally connected with the present context, namely the Applicant’s development application to subdivide the development site and the Applicant’s objection under SEPP No1.

82. It might be thought that this result is unsatisfactory in that there will necessarily remain doubt whether each of the proposed three rear lots is ultimately legally capable of being developed by a dwelling-house. This was precisely the type of dilemma that was encountered in Healesville, where in the course of the hearing of a development appeal for the subdivision of land (which was dependent upon the successful invocation of SEPP No 1), the question arose as to whether it would be legally permissible to erect a dwelling-house on each of the proposed lots. It was in these circumstances that the Court granted leave for the applicant to file instanter a class 4 application (between the same parties) claiming a declaration of its entitlement to so develop each of the lots. (The necessity for separate class 4 proceedings presumably arose because of a perception that the Court’s practice was not to make declarations in class 1 proceedings. For myself, I do not think any such practice, if it exists, to be immutable). For completeness, I should say that although the claimed declaration was refused in Healesville, it was because of the Court’s interpretation of a relevant statutory provision, which it was conceded, was not a relevant development standard.

D. QUESTION 2 - DOES S 80(2) OF THE EP&A ACT APPLY?

83. The EP&A Act s 80(2) (which re-enacts s 91(2) of the original Act) provides as follows:

Despite subsection (1), the consent authority must refuse an application for development, being the subdivision of land, that would, if carried out, result in a contravention of this Act, an environmental planning instrument or the regulations, whether arising in relation to that or any other development.

84. It is to be noted at the outset that this question of law as formulated by the Council is premised upon both (i) the construction of the accessway; and (ii) the erection of dwelling-houses on the proposed lots — being contrary to cl 16 of the LEP .

85. In my opinion, the validity of neither premise has been established. As to the construction of the accessway, it necessarily follows from my answer to the first question of law that cl 16(3) is amenable to the dispensational power conferred by SEPP No 1 which power has been properly invoked by the Applicant’s objection under SEPP No 1. Accordingly, if that objection is ultimately upheld and the dispensation power is ultimately exercised in favour of the Applicant, the construction of that part of the accessway located on the foreshore side of the FBL would not involve a contravention of cl 16(3) of the LEP and the resulting subdivision of the development site “would not result in a contravention of the Act, or any environmental planning instrument” within the meaning of the EP&A Act s 80(2).

86. As to the erection of a dwelling-house on each of the proposed lots, the only dwelling-houses that currently exist are located on the landward side of the FBL as it traverses the proposed two street frontage lots. The existence of such dwelling-houses cannot possibly involve any relevant contravention of the Act or an environmental planning instrument.

87. The possibility of some future development by a dwelling-house on each of the three proposed rear lots is just that, ie a future possibility which if it is to materialise will (assuming the continuance of the existing statutory planning regime) require the grant of the requisite development consent under cl 13 of the LEP and the successful invocation of the dispensational power conferred by SEPP No 1 in respect of the operation and effect of cl 16(3) of the LEP, which in turn will depend upon, inter alia, a decision that the FBL is relevantly a development standard.

88. Neither premise, upon which the Council’s question is founded, having been established it necessarily follows that s 80(2) has no application in the present case.

89. In so concluding, it has not been necessary to determine the question whether the future erection of a dwelling-house on each of the three proposed rear lots will be legally permissible. That question is for the future. It has not been raised in the present proceedings. Had it been done so, it would have been a subset question to the first question of law. It is not properly raised by the present question founded upon s 80(2) because it is clear that that subsection is based upon existing (and not future) circumstances. The reference to “any other development” can only reasonably be construed as a reference to other existing development. The only element of futurity expressed in the subsection is that involved in the assumption, to be made at the time of determination of the development application, that the proposed subdivision is (hypothetically) immediately carried out.

90. To the extent that the Council’s argument seeks to advance the proposition that the proposed subdivision, if approved (and it can only be approved if the claimed dispensational relief is granted under SEPP No 1 in respect of cl 16 of the LEP) would, if carried out, “result in a contravention of the Act or an environmental planning instrument”, namely cl 16 of the LEP, it must be rejected out of hand as being patently absurd.

91. The Council’s contention finds no support in the decisions (or the reasoning that produced them) of the Court of Appeal in Vaniga and in Healesville. Those decisions were directed to particular statutory provisions found in the EP&A Act (Vaniga) or the local environmental plan (Healesville) that have no bearing or relationship to s 80(2) (and the other relevant provisions of the Act).

92. Any development consent that might be granted to the proposed subdivision in the present case, clearly would satisfy the requirements of s 76A of the EP&A Act. Moreover, any such consent would necessarily overcome the effect of cl 16(3) of the LEP: see cl 6 and cl 7 of SEPP No 1 noting that the Policy prevails over any inconsistency in any other environmental planning instrument: vide cl 5

93. Examples of the meaning and operation of s 80(2) are provided in the decided cases eg G T Bissett and Co v Gosford City Council (1985) 57 LGRA 164; Smith v Wollondilly Council (1995) 86 LGERA 437; Rutland v Shoalhaven City Council (1997) 94LGERA 370.

94. Those cases all address the consequences, on existing circumstances, of the hypothetical carrying out of the proposed subdivision.

95. In the present case, for the reasons I have given, there is no existing circumstance pertaining to the development site that would, if the proposed subdivision were carried out, result in any contravention of the EP&A Act or any relevant environmental planning instrument.

96. For all the foregoing reasons, I would answer this question in the negative.

E. CONCLUSIONS

97. For all the foregoing reasons I determine the preliminary questions of law as follows:

Question 1

Whether the proposed development is prohibited by Clause 16 of the Willoughby Local Environmental Plan, 1995 on the basis that the foreshore building line provisions in Clause 16 are not development standards which can be varied by operation of the State Environmental Planning Policy No. 1.

Answer:

No

Question 2 —

Whether the development consent must be refused by operation of Section 80(2) of the Environmental Planning and Assessment Act, 1979 on the basis that the construction of the driveway and erection of dwelling houses on the lots to be created by the subdivision would be contrary to Clause 16 of Willoughby Local Environmental Plan, 1995.

Answer:

No.

I order that Exhibits remain with the Court file. The question of costs is reserved.

ANNEXURE A

(3 pages)

IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

No. 10064 of 2000

D BOWEN

Applicant

WILLOUGHBY CITY COUNCIL

Respondent

__________________________________

AGREED STATEMENT OF FACTS
__________________________________

Filed on behalf of both parties

CORRS CHAMBERS WESTGARTH
Lawyers
Governor Phillip Tower
1 Farrer Place
SYDNEY NSW 2000
AUSTRALIA
Tel: [phone]
Fax: [phone]
Ref: HPI:ACH

S/1017641/1

1. The Applicant is the owner of land known as 70-72 Sugarloaf Crescent, Castlecrag, being lots 301-305 of deposited plan number 13613 (“the land”).

2. The land comprises five lots which are separately titled.

3. The land has a total area of 11050 square metres with each lot having a frontage to Sugarloaf Crescent of 6.095 metres.

4. There are two existing dwelling houses erected over the lots, sited adjacent to the street frontage of the land on Sugarloaf Crescent: number 70 Sugarloaf Crescent is erected over lots 301-303 and number 72 Sugarloaf Crescent is erected over lots 304-305.

5. The Applicant lodged development application number 1999/1630 with the Respondent Council on 25 November 1999 (“the Application”).

6. The Application seeks to reconfigure the existing five lot subdivision whereby the two existing dwelling houses will no longer be built over lot boundaries and the remaining three lots will be of sufficient proportions to reasonably contain dwelling houses.

7. The subject matter of this appeal is the deemed refusal of the Application which in terms seeks consent for subdivision of land

at 70-72 Sugarloaf Crescent, Castlecrag being lots 301 to 305 inclusive in Deposited Plan 13613 (the “Property”), demolition of an existing garage and the construction of an access roadway. The purpose of the subdivision is the creation of residential allotments.

8. The Application includes plans numbered C1618-01, C1618-02, C1618-03 prepared by Clark Engineering Consultants and dated October 1999, unnumbered plan entitled "Sketch Plan of Subdivision" prepared by D&LA Bowen dated 8 November 1999, drawing TPOIA prepared by Pittendrigh Shinkfield & Bruce and Clark Engineering Consultants and dated October 1999 and Survey Plan prepared by S McN Bland Pty Limited and dated 31 July 1997. Copies of these plans are annexed to the Respondent's Statement of Facts and marked "A".

9. Willoughby Local Environmental Plan 1995 (" LEP 1995 ”) was gazetted on 17 November 1995.

10. The land is zoned 2(a2) - Residential Scenic Protection Zone pursuant to LEP 1995.

11. A foreshore building line (" FBL ") applies to the land pursuant to clause 16(2) of LFP 1995 as shown on sheet 12B of the map by a broken black line and unbroken red fine. A copy of sheet 12B is annexed to the Respondent's Statement of Issues and marked “B”.

12. Clause 16 of the WLEP provides:

"Foreshore Building Line

(1) The objectives of a foreshore building line are:
(i) to preserve and enhance the natural features and vegetation of the area where the land meets or is in close proximity to the water and
(ii) to encourage the protection and regeneration of land which forms an integral part of the foreshore setting by controlling new development.

(2) Foreshore building lines are shown on sheets 12A, 12B 12C and 12D of the map by a broken black line and unbroken red line.
(3) Except with the consent of the Council granted in accordance with subclause (4), a building shall not be erected between a foreshore building line and the bay, creek, harbour, river, lake or lagoon in respect of which the line is fixed.

(4) Th e Council may, after considering the probable aesthetic appearance of the proposed structure in relation to the foreshore, consent to the erection, repair or maintenance of:

(a) single storey boat sheds: or

(b) retaining walls; or

(c) inclinators; or

(d) structures or works. such as swimming pools. below or at the surface of the ground; or
(e) minor recreational and landscaping structures such as barbecues, gazebos and garden sheds between a foreshore building line and the bay, creek, harbour, river lake or lagoon in respect of which the line is fixed."

13. Clause 6 of LEP 1995 excludes the operation of clause 7 of the Environmental Planning and Assessment Model Provisions 1979 whereby a FBL may be amended by a resolution of the Council.

14. The Application proposes construction of an access roadway in part between the FBL shown on Annexure "B" and the bay in respect of which that line is fixed.

15. The Application proposes creation of 3 torrens title allotments which are wholly located between the FBL shown on Annexure "B" and the bay in respect of which that line is fixed.

DATED: 31 March 2000

______________________

Heather Patricia Irish

Solicitor for the Applicant

_______________________

Debra Jean Townsend

Solicitor for the Respondent

FILED:

S/101764/1

ANNEXURE B

(3 pages)

Objection under SEPP No 1 to Cl 16 of WLEP 1995

Proposed Subdivision 70-72 Sugarloaf Crescent Castlecrag

Clause 16 of the LEP provides that only certain development specified in Cl. 16(4) can be located between a foreshore building line and the bay creek river etc in respect of which it is fixed. it can be determined that the control is a development standard under the terms of the Environmental Planning and Assessment Act 1979.

As such the standard is able to be varied with the use of SEPP No.1 when it can be shown that the objective is achieved notwithstanding non-compliance with the numerical standard. This opinion is shared by Council and actually stated at pg 29 of the draft DCP No.16.

The objectives of the FBL are explicitly stated at Cl.16 (1) as follows:

a) to preserve and enhance the natural features and vegetation of the area where the land meets or is in close proximity to the water; and

b) to encourage the protection and regeneration of land which form an integral part of the foreshore setting by controlling new development;

Draft DCP 29 also provides additional clarification as to the use of SEPP No. 1 in relation to the FBL by stating:

"3. Council may consider a development encroaching on the foreshore building line by means of a SEPP No. 1 objection, where:

> the relevant objectives contained in the LEP and DCP are met;

> significant trees and substantial natural landscape features on the site are retained;

> major rock outcrops and other topographical features are not disturbed or concealed by the development; and

> the development is replacing an existing dwelling, eg. one which is destroyed by fire or other natural disaster or making minimal

additions to an existing dwelling which already encroached the building line.'

It is considered that in the subject case the objectives of the standard are achieved notwithstanding non-compliance with the standard. It is therefore considered unnecessary and unreasonable for the following reasons to require compliance:

> The proposed encroachment is caused only by a driveway that is

required to service the three lots that are proposed below the FBL;

> The proposed driveway is to be established at grades in accordance with Council's standards and will not be visually obtrusive;

> The site is some lkm from the nearest navigable waterway and due to the topography between the land and that waterway only limited parts of the site above approximately RL 36 could be visible in any event. From such a distance the site is not individually prominent, the view being one of a broader landscape rather than an individual property;

> As such it can be concluded that the land does not meet nor is it within close proximity to the water;

> The proposed building footprints to be established sit even lower on the site at between RL 26 and 30. At such levels, the envelopes are not visible from the waterway due to the intervening topography;

> Establishment of the driveway will require the removal of some trees which are generally of a poor condition and in decline as fully documented in the report of arborist Stuart Pittendrigh. The significant trees numbered 2, 3, 4, 6, 10, 11 & 12 and are assessed in numerical order as "fair condition but slight decline and weak junction within trunk”, "very poor condition”, "introduced poor condition and in decline”, “introduced in decline and loss of vigour”, “introduced suffering decay and insect damage”, “'in poor condition with a large wound” . Further, 'the condition of the subject trees ranges from fair to poor/very poor and in decline. Only one tree, the Smooth Bark Apple is indigenous to the locality”.'

A number of trees will also be specially protected to ensue that no damage occurs. Weed and exotic removal is also to occur and replacement indigenous planting and regeneration facilitated.

It is clear that the objective relating to protection and regeneration of land forming part of the foreshore setting will be achieved notwithstanding the encroachment;

> No natural landscape features such as rock outcrops and topographical features will be removed. Amounts of cut and fill are proposed however there is no visual impact upon neighbours caused due to the location of the driveway. Cuts and fills will be appropriately retained and treated.

It is my opinion that compliance with the standard is unreasonable and unnecessary in the circumstances of the case and Council is requested to use its discretion in this case to approve the departure as proposed.

C.F.Blyth, MRAPI, Director
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